Espino v. Besteiro

• Decision Date: 19 August 1981
• Docket Number: Civ. A. No. B-81-176.
• Citation: 520 F. Supp. 905
• Parties: Raul ESPINO, Jr., a Minor, by and through his Parents and next Friends, Raul Espino and Ana Espino, Plaintiffs, v. Raul BESTEIRO, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

520 F. Supp. 905

Raul ESPINO, Jr., a Minor, by and through his Parents and next Friends, Raul Espino and Ana Espino, Plaintiffs, v. Raul BESTEIRO, et al., Defendants.

Civ. A. No. B-81-176.

United States District Court, S. D. Texas, Brownsville Division.

August 19, 1981.

Gerald Garcia, Texas Rural Legal Aid, Inc., Harlingen, Tex., for plaintiffs.

Antonio (Tony) Martinez, Horacio Barrera, Martinez & Barrera, Brownsville, Tex., for defendants.

MEMORANDUM AND ORDER

VELA, District Judge.

This action was brought by Raul Espino, Jr., a seven year old multi-handicapped child who cannot adequately regulate his body temperature, by and through his parents, seeking declaratory and injunctive relief and damages for the alleged failure of Defendants to provide him with an education in the "least restrictive environment appropriate to his individual needs". It is alleged that the failure of Defendants to provide Raul with a fully air-conditioned classroom wherein he can interact fully with his peers, and their decision instead to provide him with an air-conditioned plexiglass cubicle within a regular non air-conditioned classroom, violate the Education for All Handicapped Children Act of 1975 (EAHCA), 20 U.S.C. §§ 1401-1420, and the regulations promulgated thereunder; the Rehabilitation Act of 1973, § 504, 29 U.S.C. § 794; and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Pendent claims based on Texas statutory law are also made.

An evidentiary hearing was held on Plaintiffs' Motion for Preliminary Injunction on August 3, 1981. Based on a preponderance of the evidence, this Court is of the opinion that Plaintiffs' Motion is meritorious in that plaintiffs have demonstrated a likelihood of success on the merits of their claim under the EAHCA and its implementing regulations and have met the other requisites for equitable relief. Plaintiffs' Motion for Preliminary Injunction is therefore GRANTED in accordance with the terms of this Memorandum and Order.

FINDINGS OF FACT

1. Raul Espino, Jr., is a seven year old multi-handicapped student at Egly Elementary School in Brownsville, Texas. During the 1981-82 academic year, he will be enrolled in the second grade at Egly.

2. Raul's handicaps result from an auto accident which occurred in 1974. At the time of the accident he was eleven months old. Raul suffered a broken spine in the cervical area, specifically at the C-5 vertebra or cervical pipe. He possibly suffered additional damage to his brain in the area of the hypothalamus.

3. As a result of the injuries sustained by Raul, he is completely paralyzed in the lower extremities. He lacks proper innervation below his elbows but has limited muscle strength in his upper arms and shoulders. He also lacks innervation in his intercostal muscles, which are used for breathing, and must use his diaphragm to compensate. Raul is medically diagnosed as a quadraplegic and is confined to a wheelchair.

4. Raul suffered damage to his sympathetic nervous system and as a result of this (and possibly as a result of a malfunctioning hypothalamus) his body cannot dissipate or conserve heat. This inability to control his temperature requires that Raul be kept in a stable temperature controlled environment between sixty-eight and seventy-eight degrees Farenheit.

5. If Raul is subjected to excess heat, his skin turns red and he begins to hyperventilate. His internal body temperature begins to rise, often higher than his external temperature. He feels ill, restless and weak, and has difficulty concentrating. Subjection to significant variations in temperature causes Raul to accumulate mucous in his lungs and increases his susceptibility to respiratory infections.

6. Because of his condition, Raul's early childhood was spent almost entirely indoors in an air-conditioned environment between sixty-eight and seventy-two degrees. Between the late fall and early spring months, Raul is able to spend some time outside. If it gets too cold, extra clothing is able to keep Raul comfortable. (Raul has not been subjected to extreme cold temperatures during the winter because of the mild season which occurs in the Brownsville area.)

7. Because Raul had to spend much of his time indoors, he had little opportunity to interact with other children his age during his early childhood. The only child he had any prolonged contact with was his younger brother. This state of affairs continues today whenever Raul is not in school.

8. Raul's ability to control his temperature appears to be improving with age. In the last year his temperature tolerance has increased from a sixty-eight to seventy-two degree range to a sixty-eight to seventy-eight degree range.

9. As he came of age, Raul was enrolled in kindergarten at the Moody School for the Handicapped in Brownsville. The Moody school (now renamed Lincoln Park School) has fully air-conditioned classrooms and Raul had few problems with his temperature while attending kindergarten.

10. On May 7, 1980, an Admission, Review, and Dismissal (ARD) Committee of the Brownsville Independent School District (BISD) met to conduct an annual review of Raul's educational placement. The committee recommended that Raul be placed in a regular first grade classroom within the BISD and educated with non-handicapped children. The committee felt that Raul's placement at Moody was "too restrictive to meet the child's intellectual and social needs". The committee recommended that Raul be placed in a "air-conditioned classroom" to accommodate his needs for a stable temperature and in addition recommended other special services for him.

11. All members of the ARD Committee, including Raul's mother, Ana Leticia Espino, approved the committee's recommendation.

12. There are no air-conditioned regular classrooms in the BISD system at the elementary level. Seven classrooms at Egly Elementary which are reserved for students of the Regional School for the Deaf are air-conditioned, as are the cafeteria and the administrative offices of the school.

13. In August 1980, Raul reported with his mother to the first grade at Egly. At that time, they discovered that he was not going to be placed in an air-conditioned classroom. Instead, school officials had constructed a portable five foot by five foot plexiglass cubicle which was provided with a window air-conditioning unit and placed within a regular classroom to satisfy Raul's special needs.

14. The cubicle had been constructed and placed in the classroom without informing Raul's parents or the central ARD Committee for the BISD. Construction of the cubicle was primarily the idea of Raul Besteiro, Superintendent of the BISD. He reasoned that the air-conditioned cubicle was the best way to accommodate Raul's individual needs and give him sufficient flexibility while at the same time not air-conditioning the classroom. Besteiro felt that if the whole classroom were air-conditioned it would open up "Pandora's box" in that parents of children who would be taught in regular elementary classrooms would complain that their children were being denied the benefits of air-conditioning, as would the children's teachers. This reasoning was also shared by Mr. Hesiquio Perez, the principal at Egly Elementary. Besteiro bolstered his reasoning by stating that Raul did not need air-conditioning one hundred percent of the time and that furthermore, the BISD could not afford to air-condition the whole classroom. He acknowledged, however, that it would be preferable for Raul not to be in a cubicle.

15. Dr. Ronald Schraer, Director of Special Services for the BISD, felt that the cubicle was the best solution for taking care of Raul's needs, but for different reasons. While he felt that a temperature stable air-conditioned classroom would be appropriate for Raul, he thought that it would be difficult to maintain a constant temperature of sixty-eight to seventy-two degrees in an air-conditioned classroom full of children, and the cubicle was sufficient to insure quick cooling for Raul when needed. He felt that it was up to the superintendent and Special Services to implement the ARD Committee's recommendation as best they could with the resources they had. He further felt that the provision of a fully air-conditioned classroom for Raul, with its derivative benefits to his non-handicapped classmates, would violate Bulletin 871 which sets out the policies for administering the Special Education Program in the State of Texas. The Bulletin allows the use of special education funds for a specific individual handicapped child and his needs and does not refer to expenditures of funds on non-handicapped peers. (Dr. Schraer checked with the Texas Education Agency and they adhere to his interpretation of the Bulletin as he would apply it to this case.) Dr. Schraer felt that his hands were tied, and in fact, a later request by him for special education funds to air-condition classrooms for some visually handicapped students was denied. He acknowledged that there are some handicapped students at the Lincoln Park facility who are receiving air-conditioning even though it is not medically necessary for them to be in an air-conditioned environment, while some of their classmates, like Raul, do require the air-conditioning. Dr. Schraer felt that the cubicle was appropriate for Raul, in light of Raul's academic performance in the first grade, and stated that BISD was prepared to change the situation if it ever became inappropriate.

16. Before deciding on the cubicle, BISD officials investigated the possibility of placing Raul in air-conditioned classrooms at three of four private elementary schools in Brownsville, and paying for his tuition and other needed services. The three schools refused to accept Raul as a student. A fourth school was never contacted, though attempts were made to do so.

17. Raul completed the first grade at Egly Elementary with the use of the cubicle. During the month of September 1980, he spent...